On the 2nd June 2026, a significant Supreme Court Ruling determined, with immediate effect, that Cheshire West v P (2014) UKSC 19 was overturned. In its simplest form the key parts of the ruling states:
- The Acid Test, formed in Cheshire West, which identifies the threshold for when a Deprivation of Liberty (article 5, ECHR) is present, is no longer to be applied. Returning to rely on Guzzardi v Italy (1981) 3 EHRR 333.
- In the circumstances where a person lacks capacity for their care and treatment, they can give ‘subjective consent’, or what we might describe as implied consent through compliance. Thus, no Deprivation of Liberty Safeguards (DoLS) would be needed in these circumstances.
As a result of the ruling coming into effect immediately, and with no guidance, it has left a void of uncertainty for many professionals working in health and care settings. Key questions include:
- What happens with active authorisations?
- What should happen to cases on the DoLS waiting list?
- How should professionals now approach DoLS in terms of forms (etc.)?
- In applying only Guizzardi v Italy (1981), where is the threshold for a Deprivation of Liberty? (This was a question that arose through the Cheshire West case.)
- For Managing Authorities, what guidance will there be to help ensure that they can identify when there is ‘subjective consent’ or objection?
- What happens in those situations where a person is objecting, directly or indirectly, but the Managing Authority does not identify this?
- What happens in those situations where a person is not objecting, and their restrictions in situ are not proportionate or necessary?
- What oversite and protection will there be to safeguard the vulnerable who cannot consent to their care and treatment?
- How does this new approach meet Human Rights?
- How does the new situation impact on the roles of Best Interest Assessor (BIA) and Relevant Persons Representative (RPR)?
As you may imagine, there has been an extremely vocal response to the new ruling among legal professionals working in this area – many of whom have raised questions similar to our own listed above. Highlights from across the web include:
- Mental Capacity Law and Policy
- Lucy Series, In the Small Places
- Essex 39 – webinar and resource
- Community Care and a second article updating
- Local government lawyer
- British Association for Social Workers
- Judge Hilder’s ‘note for RE X judges’
- CQC statement
At the heart of these matters, a common thread is we need to ensure we are returning to what the new ruling states alongside relevant legislations, applying to the best of our beliefs in the interim and to await further direction from relevant parties as to practical applications.
Leading on from which, Claire Webster (2026) writes ‘The reality is that significant legal change often creates two immediate risks: panic at one end and oversimplification at the other. Neither helps the people whose lives are affected by these decisions.’ This is a very important reminder to us to seek to professionally approach this present challenge and to safeguard those we work alongside; for which ADASS has shared it is continuously updating its guidance as information becomes available and BASW has written to the government regarding these matters.
Where next?
As we write this blog, in early June 2026, we now find ourselves at a point of transition, where Supervisory Bodies and appropriate wider parties are in urgent consultations to develop guidance while, hopefully, formal Codes of Practice and associated direction from government are developed.
We do not doubt that there will be many implications for practice – some foreseeable, some perhaps not foreseeable, in the coming weeks and months. There will also likely be legal challenges on the horizon. In the meantime, we would encourage anyone reading this blog to consult your local Supervisory Body and monitor appropriate bodies for next steps. For Managing Authorities in doubt of whether to apply or not for a DoLS authorisation, we would suggest approaching the process with caution, making the application if there is any reasonable belief it would be appropriate, ensuring you document all relevant information.